Markkula Center of Applied Ethics

Who will blow the whistle if surveillance oversteps?

By Rob Elder

The important point is not that American intelligence agencies fumbled clues that pointed to a terrorist attack using our own airliners. In retrospect, we know they did. Nor is there any question about whether those intelligence agencies should be reorganized. They must be.

But President Bush's proposal last week to create a Cabinet-level Department of Homeland Security does little to reform the FBI, where the most glaring breakdowns occurred. And it does nothing to address the most crucial issue raised by 9/11: How does an open society deal with the probability of future terrorist attacks without compromising the privacy and civil liberties of its own citizens?

Perhaps the administration and Congress will find the proper division of responsibilities among the FBI and the CIA, and the host of other agencies to be grouped within the new department. But the new configuration will be dangerously deficient if it does nothing to address other questions.

How do you limit the power of government to spy on and keep dossiers about American citizens -- and innocent non-citizens on U.S. soil? Who will blow the whistle when intelligence gathering goes too far, or when information is misused? And what constitutes misuse?

It will take time and debate to decide on the answers. But decide we must. We know that during the Cold War, when the FBI's principal mission was to root out communism, files were kept on non-communists ranging from Martin Luther King Jr. to members of Congress. Recently, Attorney General John Ashcroft has loosened restrictions that had barred the FBI from conducting surveillance in churches and mosques, and from trolling the Internet.

Many Americans are as concerned about infringements on their civil liberties as about terrorist attacks. During a recent discussion of the FBI on a KQED talk show, virtually every caller denounced the prospect of government surveillance of ordinary citizens and law-abiding non-citizens.

I don't like that either. But it is naive to expect our intelligence agencies to monitor only known bad guys. If the government knew who and where they are, they already would have been arrested. To find them, it must watch whole groups of mostly innocent people. With terrorist attacks likely at any time, every American who travels by air, everyone who crosses a landmark bridge or visits an important national monument can expect to be watched and perhaps recorded by hidden cameras.

That's the price we pay for safety. The point is not whether we're under surveillance of some sort. The National Security Agency already records communications of all kinds, by satellite. The important thing is what happens to raw data once it is gathered.

Coleen Rowley, the FBI field agent who blew the whistle after the bureau's Washington headquarters ignored her critical letter of May 21, made that point in her testimony to Congress last week.

"A lot of it is in the how,'' she said of surveillance of public meetings. "If a person stands up and . . . gives a speech about undertaking an act of terrorism, we are now going to be in a position that we will know it. (But) if people are merely engaging in their First Amendment rights . . . nothing happens to that information. That's the difference from the '50s. We don't come back and record who was there. We do not look into the people who were there. It just ends.''

But what if it doesn't? Who will blow the whistle then? Perhaps President Bush intends for his proposed Department of Homeland Security to be the watchdog. It will review but not gather intelligence data, and it could, in theory, serve as a check on the FBI and the CIA. But the new department will be part of the Bush administration. Its director will be appointed by the president, and this person's willingness to publicly challenge intelligence abuses by other parts of the administration is open to question.

Don't expect Congress to do the job. Just as the job of homeland defense involves scores of executive branch agencies, the legislative branch's oversight is similarly fragmented, with 88 congressional committees and subcommittees sharing the responsibility. Congress is good at what it's doing now -- after-the-fact review. But it's difficult to imagine it functioning effectively as a real-time monitor of intelligence work in progress.

That leaves the judiciary. One possibility is a watchdog team appointed by and responsible to the U.S. Supreme Court. Members of that team could serve as monitors inside the various intelligence agencies, guarding against the misuse of information.

After all, the notion of the judiciary, the executive and the legislative branches each serving as checks and balances on the other two was the basic premise on which our founding fathers sought to protect Americans from abuses by their own government.

This article originally appeared in the San Jose Mercury News on Monday, June 10, 2002.

Rob Elder is the retired editor of the Mercury News and senior fellow at the Markkula Center for Applied Ethics at Santa Clara University.

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